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Collaboration and the Colorado River Compact \\server05\productn\N\NVJ\8-3\NVJ307.txt unknown Seq: 1 18-JUL-08 13:19 COLLABORATION AND THE COLORADO RIVER COMPACT Patricia Mulroy* On December 13, 2007, at the Colorado River Water Users Association’s annual conference in Las Vegas, Nevada, the Secretary of the Interior signed a historic Record of Decision approving adoption of interim guidelines for the management of shortages in the Lower Colorado River Basin and the coordi- nated operation of Lake Powell and Lake Mead.1 The decision is historic because it outlines—for the first time in the history of the Colorado River Compact—specific guidelines for addressing shortage conditions among the three states in the Lower Basin (Arizona, California, and Nevada), as well as for coordinating the operation of Lakes Powell and Mead under low water con- ditions for the benefit of states in both the Upper and Lower Basins. The guidelines, in turn, substantially reflect the collaborative thinking and input of the seven basin states, as provided to the Secretary of the Interior on February 3, 2006,2 and April 30, 2007,3 as part of the Department of Interior’s two-year public involvement plan for the development of shortage criteria on the lower Colorado River. As noted by the Record of Decision, the guidelines include: ♦ [establishment of] discrete levels of shortage volumes associated with Lake Mead elevations to conserve reservoir storage and provide water users and managers in the Lower Basin with greater certainty to know when, and by how much, water deliveries will be reduced in drought and other low reservoir conditions; ♦ a coordinated operation of Lake Powell and Lake Mead determined by specified reservoir conditions that would minimize shortages in the Lower Basin and avoid the risk of curtailments in the Upper Basin; ♦ a mechanism to encourage and account for augmentation and conservation of water supplies, referred to as Intentionally Created Surplus (ICS), that would mini- mize the likelihood and severity of potential future shortages; and * General Manager, Southern Nevada Water Authority. 1 U.S. DEP’T OF THE INTERIOR, RECORD OF DECISION—COLORADO RIVER INTERIM GUIDE- LINES FOR LOWER BASIN SHORTAGES AND THE COORDINATED OPERATIONS OF LAKE POWELL AND LAKE MEAD (Dec. 2007), available at http://www.usbr.gov/lc/region/programs/strate- gies/RecordofDecision.pdf [hereinafter RECORD OF DECISION]. 2 Seven Basin States’ Preliminary Proposal Regarding Colorado River Interim Operations (Feb. 2006), available at http://www.usbr.gov/lc/region/programs/strategies/consultation/ Feb06SevenBasinStatesPreliminaryProposal.pdf. 3 Letter from the States of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming Governors’ Representatives on Colorado River Operations to Dirk Kempthorne, Sec’y of the Interior (Apr. 30, 2007), available at http://www.usbr.gov/lc/region/programs/ strategies/DEIScomments/State/BasinStates.pdf (regarding comments on the Draft Environ- mental Impact Statement, Colorado River Interim Guidelines for Lower Basin Shortages, and Coordinated Operations for Lake Powell and Lake Mead). 890 \\server05\productn\N\NVJ\8-3\NVJ307.txt unknown Seq: 2 18-JUL-08 13:19 Spring 2008] COLORADO RIVER COMPACT 891 ♦ the modification and extension of the Interim Surplus Guidelines through 2026.4 The new guidelines implement interim reservoir operations that are designed to minimize shortages in the Lower Basin and avoid the risk of cur- tailments in the Upper Basin through an operating strategy for Lakes Powell and Mead that strives to balance the water supply between these reservoirs, while maximizing their use. The guidelines replace the existing Interim Sur- plus Guidelines by extending the Interim Surplus Guidelines through 2025 with amendments that (a) remove the partial domestic surplus category; (b) limit domestic surpluses for the Metropolitan Water District to 250,000 acre-feet, for Arizona to 100,000 acre-feet, and for the Southern Nevada Water Authority (“SNWA”) to 100,000 acre-feet during the years 2016 through 2025; and (c) implement shortage conditions when Lake Mead’s elevation is at 1075 feet or lower. The guidelines also provide an opportunity for Lower Basin states to develop, store, and access intentionally created surplus (“ICS”) water through extraordinary conservation efforts, tributary conservation, system efficiency projects, or importation of non-Colorado River water into the mainstream of the Colorado River. In any one year, the creation of extraordinary conservation ICS for California, Nevada, and Arizona will be limited to 400,000 acre-feet, 125,000 acre-feet, and 100,000 acre-feet, respectively, while the maximum amount that California, Nevada, and Arizona can accumulate at any one time is limited to 1.5 million acre-feet, 300,000 acre-feet, and 300,000 acre-feet, respectively. These limits do not apply to other categories of ICS water availa- ble to Nevada. The Record of Decision also activates an existing agreement between the seven basin states5 to pursue interim water supplies, system augmentation, sys- tem efficiency, and water enhancement projects within the Colorado River sys- tem, including but not limited to importation of new sources of supply from outside the Colorado River Basin and desalination of ocean water or brackish water. The decision and interim guidelines are a major advancement in the man- agement of Colorado River water resources, one with significant benefits to Southern Nevada. Beyond the advantages cited above, the guidelines provide for the development of procedures that will allow Nevada’s pre-compact tribu- tary and imported groundwater water resources to be introduced, conveyed through, and diverted from the Colorado River system. Ninety-five percent of this water would be recoverable and available during any shortage and would contribute to return flow credits. As the SNWA pursues development of addi- tional, available groundwater supplies within Nevada, this procedure will pro- vide an opportunity for the SNWA to extend the use of these new supplies significantly. Second, the guidelines allow Nevada to participate in the imple- mentation of system efficiency projects such as the Drop 2 Reservoir along the All American Canal in California and the Yuma Desalting Plant in Arizona, as 4 RECORD OF DECISION, supra note 1, at 4 (citation omitted). 5 Letter from the States of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming Governors’ Representatives on Colorado River Operations, supra note 3, at Attachment A (Agreement Concerning Colorado River Management and Operations), avail- able at http://www.usbr.gov/lc/region/programs/strategies/DEIScomments/State/Basin- States.pdf. \\server05\productn\N\NVJ\8-3\NVJ307.txt unknown Seq: 3 18-JUL-08 13:19 892 NEVADA LAW JOURNAL [Vol. 8:890 well as future augmentation projects. Participation in the Drop 2 project alone will give Nevada access to a one-time supply of water (at least 400,000 acre- feet) that can be accessed in future years on an as-needed basis. The Record of Decision was specifically the result of a public process that began in 2005 when the Secretary requested input from the seven states of the Colorado River Compact and other stakeholders regarding development of additional operational guidelines and tools to meet the challenges of the ongo- ing drought in the Colorado River Basin. In actuality, however, the decision is the product of a decades-long interaction among the seven basin states—an interaction that has helped to clarify issues and concerns, develop effective working relationships among all the parties, and establish trust and commit- ment on matters of regional and national importance. As a result of their col- lective history and experience, the seven basin states have learned how to move forward and address water management challenges incrementally, while work- ing steadfastly to meet the water supply needs of individual states and communities. Unfortunately, there is no magic formula for success in this type of endeavor. While there are advantages to interstate water compacts in meeting regional and local water needs, and although one cannot overstate the impor- tance of collaboration in managing activities and defusing potential conflicts when or where water is scarce, neither is a substitute for the hard work and compromise that ultimately produces results in the face of competing interests and needs. Over the past eight years, the sustained drought in the American West and the reality of climate change gradually altered historical understandings of the Colorado River and challenged many underlying assumptions about the river’s long-term management. In response to these new conditions, the seven states of the Colorado River Basin and numerous communities that depend on the river for water began to adjust infrastructure plans, further improve water effi- ciency, and take steps to develop additional unused water supplies to maintain the reliability of their delivery systems. In only a few years, the river’s many stakeholders had to accept and respond to this “strategic inflection point” in their collective history as stewards of the river and its life-giving water.6 Their ability to do so is a testament not only to the flexibility inherent in the original Colorado River Compact, but also to the pragmatic and collaborative working relationship that has developed between the seven basin states, particularly in the past twenty years. The recent success in the Colorado River Basin stands in stark contrast to the ongoing water challenges
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